CHICAGO — A suburban lawyer who represented a Muslim man in a successful discrimination lawsuit against the Illinois Department of Transportation failed in his bid to convince a federal appeals panel to increase his fee award by nearly $1 million.
In January 2019, U.S. District Judge Thomas M. Durkin granted $774,584 in fees and $4,0621 in costs to attorney Joseph M. Longo and his firm, Longo & Associates, of Mount Prospect, for representing DeMarco Nichols in his action against IDOT. A federal jury awarded Nichols more than $1.2 million for his 2012 lawsuit alleging IDOT violated the U.S. Civil Rights Act of 1964 and the Illinois Whistleblowers Act by failing to accommodate his religious practices, discriminating against him and then retaliating after he reported the alleged activity.
Longo had requested $1.7 million in fees and $4,460 in costs. Durkin’s ruling held that Longo inflated both his hourly rate and the number of hours it would’ve taken to manage Nichols’ litigation. Longo challenged Durkin’s decision before the U.S. Seventh Circuit Court of Appeals, arguing Durkin used an erroneous legal framework while also abusing judicial discretion in calculating the award by relying on one of Longo’s own prior cases for comparison.
Joseph Longo
| Longo & Associates
Seventh Circuit Judge Kenneth Ripple wrote the panel’s opinion, issued July 6; Circuit judges Michael Kanne and Michael Scudder concurred.
According to Ripple, Longo said his hourly rate was $550 and that he spent almost 3,108 hours on Nichols’ case. He also requested a 15% adjustment because Nichols’ case was “risky,” and his success would deter future misconduct by the state agency. IDOT “vigorously contested” Longo’s numbers, Ripple wrote, instead saying he should get only $286,931, including a downward adjustment based on a belief the way Longo managed the case “inflated inappropriately his fee request.”
Durkin determined Longo’s hourly rate should’ve been $360 for himself and $125 for paralegal work. The judge also reduced Longo's hours request by 962 hours, saying the cuts include eliminating billing for trips from his office to the courthouse, paralegal work that was billed as attorney hours, and excessive clerical and general billing.
“All of Mr. Longo’s contentions in his appellate brief are meritless,” Ripple wrote. “Some are simply frivolous. Although we do not impose sanctions today for Mr. Longo’s apparent failure to heed past opinions critical of frivolous fee litigation conduct, we are unlikely to countenance such behavior in the future.”
The panel said Durkin’s “analytical framework” for calculating Longo’s fee award “is well established and straightforward.” It further noted Durkin “thoroughly examined” the affidavits Longo submitted from other lawyers and found they didn’t establish why his requested rate of $550 per hour was reasonable. Three were conclusory, Ripple wrote, and the others were unpersuasive for various reasons, including not addressing employment cases like Nichols’ or not listing approved payments for work on similar litigation.
Ripple also said Durkin didn’t abuse discretion by observing another judge in the district set Longo’s hourly rate at $360 in litigation overlapping with the Nichols lawsuit. He further clarified Durkin didn’t prevent Longo from recovering money for commuting, only that he determined the amount of travel billed was unreasonable given the court was allowing and encouraging parties to appear by phone to reduce expenses.
The panel said Durkin was justified in denying Longo’s request for an upward adjustment, finding the case wasn’t rare or exceptional, and also said Longo didn’t deserve fees from IDOT for his work on seeking the overall fee award.
“He submitted a voluminous billing record that included plainly inappropriate entries,” Ripple wrote, including 12 minutes for reading single, short emails and 250 hours for reviewing summary judgment documents. “The district court meticulously, fairly and correctly applied our case law and awarded reasonable attorneys’ fees and costs.”